1. An appellant's designation of the case caption does not determine the parties to an appeal.

2. Administrative regulations promulgated with an agency's statutory authority have the force
and effect of law.

3. An appellate court grants deference to an agency's interpretation of its own regulations
and will not disturb the agency's interpretation unless it is clearly erroneous or inconsistent
with the regulation.

4. Because the interpretation of a regulation is a question of law, an appellate court is not
bound by the district court's judgment.

5. When the legislature makes procedural rather than substantive changes to a statute, an
appellate court applies those changes to cases pending as of the effective date of the
legislation unless the changes affect substantive or vested rights.

6. As of July 1, 2009, when reviewing administrative actions to determine whether they are
supported by substantial evidence, an appellate court must consider whether the agency's
factual findings are supported to the appropriate standard of proof by evidence that is
substantial when viewed in light of the record as a whole. The phrase "in light of the
record as a whole" requires that an appellate court view the evidence supporting a
particular finding of fact in light of all the relevant evidence in the record cited by any
party that detracts from such finding as well as all of the relevant evidence in the record
cited by any party that supports such finding.

7. The term "known" in K.A.R. 30-63-28(f), which prohibits employment of an individual
known to have had a conviction for or a prior employment history of abuse, neglect, or
exploitation of a child, means more than merely alleged or even suspected. Rather, it
contemplates abuse, neglect, or exploitation that has been substantiated or confirmed after
all parties have had an opportunity to present evidence and a determination has been made
from conflicting evidence.

8. The several subsections of K.A.R. 30-63-28, when viewed in their entirety, clearly
differentiate between "suspected" or alleged conduct, which triggers a provider's
obligations to report and investigate an individual, and a "known" history of such conduct,
which bars a provider from employing the individual.

9. K.A.R. 30-64-32, the Kansas Department of Social and Rehabilitation Services' (SRS)
regulation requiring Community Development Disability Organizations (CDDO) to
implement dispute resolution procedures and establishing the procedure under which
certain parties affected by the CDDO's decisions may appeal, does not require a hearing
prior to a determination of the appeal by the Commission, i.e., the division of mental
health and developmental disabilities of SRS. However, K.A.R. 30-64-32(c)(3)(B)
specifically provides for a fair hearing pursuant to Article 7, K.A.R. 30-7-64 et seq., if
an
appeal is taken from the Commission decision.

10. When the purpose of an administrative hearing was to determine whether SRS
correctly
determined that an applicant lacked a known history of abuse as contemplated under
K.A.R. 30-63-28(f), evidence of specific acts of abuse which were reported and
investigated more than 20 years prior to hearing were not relevant to the determination.

11. The requirement, under the Kansas Judicial Review Act (KJRA), that the appellate
court
consider all relevant evidence that detracts from the agency's finding as well as relevant
evidence supporting an agency's finding, does not require consideration of unsubstantiated
and unconfirmed evidence presented at the SRS administrative hearing. Such information
is not relevant to the limited purpose of the hearing, which is to determine whether an
applicant seeking affiliation status in order to become a paid provider with SRS had a
known history of abuse under K.A.R. 30-63-28(f) at the time the application was initially
considered.

CAPLINGER, J.: In this administrative appeal, Johnson County Developmental Supports
(JCDS) challenges the district court's order affirming the decision of the Kansas Department of
Social and Rehabilitation Services (SRS) overruling JCDS's denial of Alberta Brumley's
application for affiliate status.

The primary issue on appeal involves whether SRS erroneously determined that Alberta
Brumley did not have a "known" history of abuse, neglect, or exploitation of children or
vulnerable adults, as set forth in K.A.R. 30-63-28(f), and thus she was not prohibited from
affiliating with the agency as a paid provider of services for her disabled son.

We conclude the district court properly upheld SRS's interpretation of the term "known"
in K.A.R. 30-63-28(f) to require more than mere allegations or suspicions of abuse. Rather, as the
district court found, the term contemplates allegations of abuse, neglect, or exploitation that have
been substantiated or confirmed after the parties have had an opportunity to present evidence and
a determination has been made from conflicting evidence. Because none of the allegations of
abuse against Alberta Brumley were substantiated or confirmed in this manner, the district court
did not err in affirming the agency's decision directing JCDS to enter into an affiliation agreement
with Alberta.

Factual and procedural background

Delmar and Alberta Brumley (the Brumleys) served as licensed foster care providers for
many years until April 15, 1993, when SRS did not renew their license. While foster parents, the
Brumleys accepted placement of approximately 100 to 150 foster children, many of whom were
troubled teenagers.

One of those foster children, Jeremie, was born in October 1982 and was an infant when
placed with the Brumleys. Jeremie has suffered from severe, lifelong, mental and physical
disabilities. The Brumleys later adopted Jeremie with the understanding that SRS would continue
to provide financial support to assist with Jeremie's care. In 2000, the Brumleys were appointed
Jeremie's legal guardians. After Delmar suffered a stroke in 2004, Robert Hodgdon replaced
Delmar as Jeremie's guardian.

While Jeremie was a minor, he received public assistance through the Attendant Care for
Independent Living program. However, as he approached age 21, SRS and JCDS worked with
the Brumleys to implement a plan to transition Jeremie into the Home and Community Based
Services program for adults. The transition did not develop smoothly, and a care plan for Jeremie
had not been implemented by his 21st birthday.

Because no care plan was in place, Jeremie received no public assistance for 18 months.
JCDS and the Brumleys eventually agreed on several care plans, but SRS rejected these plans. In
2004, Delmar Brumley applied for affiliate status in order to become a paid provider for Jeremie.

In connection with the application, JCDS investigated the Brumleys' past association with
SRS as foster parents and discovered several reports of abuse made against the Brumleys.
However, only one report resulted in the filing of criminal charges against Alberta Brumley in
1994. Alberta eventually pled guilty to one misdemeanor charge of contributing to a child's
misconduct, which related to keeping a foster child home from school on the recommendation of
a sex therapist. The remaining charges were dismissed. Alberta's misdemeanor conviction was
expunged in August 2000.

JCDS also discovered several other reports of abuse against the Brumleys, all of which
were investigated and eventually deemed unfounded or simply unconfirmed. JCDS also learned
that a former foster child of the Brumleys filed a civil suit against the Brumleys and SRS in 1993
alleging abuse by the Brumleys in the 1980's. However, the suit was later voluntarily dismissed by
the plaintiff.

JCDS's investigation also disclosed that in 1992 the Brumleys' adopted son Douglas was
killed from a blow to the stomach and other physical injuries incurred while staying with
Kimberlee Lee, the Brumleys' adult daughter. Ultimately, Lee and her husband were convicted of
the child's murder. However, the Brumleys were found not culpable in the child's death after an
investigation determined that Alberta had placed the child with her daughter temporarily after
Alberta underwent surgery.

Finally, JCDS's investigation determined that in May 1997 a nurse providing care to
Jeremie Brumley reported that Alberta had falsified time sheets regarding her daughters' care of
Jeremie. Although the Kansas Attorney General's office conducted a Medicaid fraud investigation,
no charges were filed based on that investigation.

Based on the information obtained in its investigation, JCDS denied Delmar's
application
for affiliate status. That decision was not appealed.

Throughout 2004 and 2005 Alberta Brumley and Robert Hodgdon contacted state
legislators in an effort to obtain their assistance in obtaining SRS's approval of a care plan for
Jeremie that was acceptable to the Brumleys. As Jeremie's legal representatives, attorneys from
the Disability Rights Center (DRC) also lobbied vigorously on Jeremie's behalf.

In February 2005, SRS and JCDS representatives met with the Brumleys to attempt to
develop a workable care plan for Jeremie. Though a plan was not approved at the meeting,
subsequent negotiations led to an agreement providing approximately $70,000 annually in
self-directed care support for Jeremie. At the February meeting, a DRC attorney representing
Jeremie
inquired about whether Alberta could become a paid provider. JCDS welcomed Alberta's
application but indicated the application would probably be denied. Alberta subsequently
submitted an application seeking affiliate status in order to become a paid provider for Jeremie.

Based on the information obtained during the investigation of Delmar's previous
application as well as additional information obtained from the Kansas Attorney General's and
Johnson County District Attorney's offices, JCDS determined that Alberta had a "history" of
abuse, neglect, or exploitation of a child under K.A.R. 30-63-28(f) and could not become an
affiliated provider. JCDS denied Alberta's application on March 28, 2005. Jeremie, through the
DRC, and Alberta appealed the denial of Alberta's application to the Johnson County Council of
Community Members (Council).

Meanwhile, in correspondence dated March 11, 2005, SRS advised Jeremie's DRC
attorney that SRS had approved a care plan permitting Jeremie's guardians to become paid
providers. SRS did not initially advise JCDS of this plan.

On April 19, 2005, Alberta and SRS agreed to a care plan that permitted Alberta to
become a paid provider but required the Brumleys to release SRS and JCDS from any liability
resulting from the Brumleys' care of Jeremie.

On April 20, 2005, the Council declined to hear Alberta's appeal of JCDS's denial of
Alberta's application for affiliation, reasoning that it lacked authority to interpret SRS regulations.
On the same date, JCDS informed the Brumleys' billing affiliate, Resource Center for Independent
Living (RCIL), that the Brumleys were ineligible for support or reimbursement payments. RCIL,
in turn, contacted SRS and was directed by SRS to pay the Brumleys and told that SRS would
inform JCDS of the decision.

On May 31, 2005, the DRC, on behalf of Jeremie, appealed JCDS's denial of Alberta's
affiliate application to Margaret Zillinger, Director of SRS's Community Supports Services. In a
letter decision dated June 3, 2005, Zillinger overruled JCDS' denial of Alberta's affiliation
application and directed JCDS to enter into an affiliation agreement with Alberta. On June 27,
2005, JCDS requested an administrative hearing to challenge SRS's order requiring JCDS to
affiliate with the Brumleys.

While the administrative proceeding was pending, JCDS threatened RCIL with
termination of its affiliate status if RCIL did not discontinue payments to Alberta by April 30,
2006. Jeremie, through the DRC, and the Brumleys filed suit in Johnson County District Court
seeking a temporary restraining order preventing JCDS from refusing payment to Alberta. The
district court granted the requested restraining order and ultimately granted an injunction against
JCDS.

The administrative law judge (ALJ) assigned to JCDS's appeal of SRS's affiliation order
conducted a 2-day administrative hearing on December 19-20, 2006. At the hearing, JCDS
introduced the testimony of Jennifer Bustamonte, who was one of the Brumleys' foster children in
1984-85 and was listed as a witness in the 1994 abuse complaint against Alberta Brumley.
Bustamonte testified regarding abuse of other foster children of the Brumleys that she claimed to
have witnessed more than 20 years earlier.

The ALJ ultimately issued an order agreeing with SRS's interpretation of K.A.R.
30-63-28(f) and affirming SRS's decision ordering JCDS to affiliate with Alberta Brumley. Upon
JCDS's
motion, however, the district court stayed the ALJ's order pending review. JCDS then appealed to
SRS's State Appeals Committee, which issued a final order on June 19, 2007, incorporating,
adopting, and affirming the ALJ's order.

JCDS appealed SRS's final decision to the district court, contending the State Appeals
Committee: (1) rendered incomplete findings of fact which were unsupported by the evidence and
disregarded undisputed evidence; (2) erroneously interpreted K.A.R. 30-63-28(f); (3) erroneously
concluded SRS's interpretation of the regulation was not subject to adjudication in the
administrative proceeding; (4) failed to address whether SRS could waive the prohibition of
K.A.R. 30-63-28(f); and (5) erred in failing to find that SRS implemented an improper procedure
by requiring JCDS to affiliate with Alberta.

Following briefing, the district court issued a memorandum decision and order affirming
the State Appeals Committee and denying JCDS's petition for relief.

JCDS appeals the district court's decision affirming SRS's final order requiring JCDS to
affiliate with Alberta Brumley.

I. DID THE DISTRICT COURT ERR IN AFFIRMING SRS's DECISION
REQUIRING
JCDS TO AFFILIATE WITH ALBERTA BRUMLEY?

On appeal, JCDS asserts five arguments in support of its assertion that the district court
erred in affirming SRS's decision requiring JCDS to affiliate with Alberta Brumley: (1) SRS failed
to decide an issue requiring resolution, i.e., whether Alberta Brumley possessed a
known
employment history of abuse, neglect, or exploitation; (2) SRS erroneously interpreted K.A.R.
30-63-28(f); (3) SRS employed an unlawful procedure in reaching its decision with respect to
Alberta's affiliation; (4) SRS's determination was not supported by substantial competent
evidence; and (5) SRS's determination was otherwise unreasonable, arbitrary, and capricious.

Judicial review of an administrative agency action is governed by the recently amended
Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. See L. 2009, ch. 109,
secs. 23-30;
Ninemire v. Kansas Dept. of SRS, 284 Kan. 582, 585-86, 162 P.3d 22 (2007).
K.S.A. 77-621(c)
limits the scope of judicial review to specific, enumerated issues. The issues raised by JCDS are
within our scope of review. See K.S.A. 77-621(c)(3), (4), (5), (7) and (8). In reviewing a district
court's decision reviewing an agency action, we must first determine whether the district court
followed the requirements and restrictions placed upon it, and then make the same review of the
administrative agency's action as does the district court. See Jones v. Kansas State
University,
279 Kan. 128, 139, 106 P.3d 10 (2005).

As of July 1, 2009, when reviewing administrative actions to determine whether they are
supported by substantial evidence, we must determine whether the agency's factual finding is
supported "to the appropriate standard of proof by evidence that is substantial when viewed in
light of the record as a whole." L. 2009, ch. 109, sec. 28(c)(7) (amending K.S.A. 77-621[c][7]).
The phrase "in light of the record as a whole" requires that we judge the evidence supporting a
particular finding of fact "in light of all the relevant evidence in the record cited by any party that
detracts from such finding as well as all of the relevant evidence in the record . . . cited by any
party that supports such finding." See L. 2009, ch. 109, sec. 28(d) (amending K.S.A. 77-621[d]).

Further, when reviewing administrative actions for substantial evidence under K.S.A.
77-621(c)(7), we do not reweigh evidence or engage in de novo review. See L. 2009, ch. 109,
sec.
28(d) (amending K.S.A. 77-621[d]).

As discussed below, although the legislative amendments altered our standard of review,
the altered standard of review does not affect our decision in this case.

A. SRS Has Not Properly Raised A Procedural Issue

In the introduction to the argument section of its response brief, SRS indirectly challenges
JCDS's inclusion of the Board of County Commissioners of Johnson County (Board) in the case
caption of its appeal brief and loosely suggests this raises a "jurisdictional" issue. SRS points out
that the Board was not a party to the proceedings below, nor was it ever substituted for JCDS,
and thus it is not a party to this appeal.

However, SRS has not moved to strike the Board from the caption of JCDS's brief, nor
has SRS filed a cross-appeal from the district court's apparent failure to address the issue below.
As such, the issue is not properly before this court. See K.S.A. 60-2103(h); Kansas Supreme
Court Rule 5.01(a) (2008 Kan. Ct. R. Annot. 33). Moreover, we note that an appellant's
designation of the case caption does not determine the parties to an appeal. See Ryder v.
Farmland Mut. Ins. Co., 248 Kan. 352, 367-68, 807 P.2d 109 (1991).

Further, while subject matter jurisdiction may be raised at any time, Vorhees v.
Baltazar,
283 Kan. 389, 397, 153 P.3d 1227 (2007), SRS cites no authority indicating the district court or
this court was deprived of jurisdiction by the failure to designate the Board as a party.

Accordingly, we decline to consider this issue as it is not properly before the court.

B. The District Court Did Not Err in Finding SRS Did Not Fail to Decide a
Necessary Issue

Initially, JCDS argues that in overturning JCDS's denial of Alberta's affiliation application,
SRS failed to explicitly determine whether K.A.R. 30-63-28(f) applied, i.e., whether
Alberta
possessed a known employment history of abuse, neglect, or exploitation of a child or vulnerable
adult.

JCDS's argument on this issue is convoluted at best, but it appears its argument is twofold.
First, JCDS suggests that in the agency's initial letter decision directing JCDS to affiliate with
Alberta Brumley, the agency failed to specifically determine whether K.A.R. 30-63-28(f) barred
Brumley's application. Further, JCDS suggests the district court similarly failed to engage in a
fact-finding process to determine whether K.A.R. 30-63-28(f), as applied to the facts developed
by JCDS at the administrative level, barred Alberta's application.

Regarding its first contention, JCDS points out that the initial letter decision by the SRS'
Director of Community Supports and Services, Margaret Zillinger, dated June 3, 2005, failed to
specifically find that Alberta Brumley "does not have a history of abuse, neglect or
exploitation of
children or vulnerable adults as prohibited by K.A.R. 30-63-28(f)." (Emphasis added.) Quoting
from Zillinger's subsequent testimony, JCDS suggests that Zillinger's letter was less than direct
because the Director and her staff had concluded that Alberta Brumley did have a
history of
abuse, neglect, or exploitation.

First, we note our disagreement with JCDS's characterization of Zillinger's subsequent
testimony. However, we need not look to that testimony to resolve this issue. Rather, the tenor of
Zillinger's letter decision and the nature of the subsequent administrative proceedings amply
demonstrate that JCDS understood the basis for the letter decision.

Specifically, Zillinger's letter recognized that affiliation status could be denied to a
provider that violates the conditions of K.A.R. 30-63-28, and that JCDS relied on section (f) of
the regulation to deny Alberta's application. The letter impliedly suggests the agency's
disagreement with this interpretation, pointing out that JCDS relied upon "situations of
possible
abuse" and an expunged conviction "that was not 'abuse, neglect, or
exploitation.'" (Emphasis
added.) Further, the letter indicated that the Brumleys have met all of Jeremie's health and welfare
needs since his adoption at a young age and directed JCDS to enter into an affiliate agreement
with Alberta and conduct quality assurance activities regarding Jeremie's services.

Finally, the letter's conclusion suggests that the agency's disagreement with JCDS is based
upon the agency's differing interpretation of the regulation. Zillinger concluded; "In the case
that
parties continue to interpret K.A.R. 30-62-28(f) [sic] to apply to this case, SRS has
the option"
pursuant to K.A.R. 30-63-20(b) to waive specific requirements and that it "would waive the
specific provision of 'known history.'"

As Alberta Brumley concedes in her response brief, Zillinger's June 3, 2005, letter
"arguably could have stated [the Director's] position more clearly." Nevertheless, it conveyed the
basis for the agency's initial determination, as can be seen from the subsequent appeal
proceedings.

For instance, in the prehearing order, the ALJ articulated two issues to be determined in
the administrative appeal:

"The appellant (JCDS) appeals from the agency's decision requiring it to enter into
an
affiliate agreement with Alberta Brumley (intervener) [sic]. The appellant asserts Ms.
Brumley
has a history of abusing or neglecting children when she was a foster parent 10-12 years ago.
SRS claims none of these allegations were substantiated by SRS at the time, and Ms. Brumley's
record has been clean since. . . .

"Even if Ms. Brumley has a history of abusing or neglecting children under K.A.R.
30-63-29(f) [sic], SRS asserts it has the authority under K.A.R. 30-63-20 to waive
this consideration,
if good cause for waiving it can be shown."

Significantly, the record does not indicate that JCDS disputed the ALJ's characterization
of the appeal as a challenge to the agency's application of K.A.R. 30-63-28(f) and, alternatively,
to its application of K.A.R. 30-63-20(b).

Moreover, the ALJ ultimately adopted SRS's position, finding that an individual does not
have a "known" history of abusing, neglecting, or exploiting children or vulnerable adults if the
history is based on mere allegations or suspicions of abuse. Rather, the ALJ concluded that the
"accused" must have had an opportunity to "litigate" the matter and present evidence before a
neutral tribunal. However, the ALJ specifically noted that the December 2006 hearing at which
the evidence presented to the ALJ was not such a forum.

The ALJ's decision was appealed to and affirmed by the Appeals Committee, and JCDS
appealed this final decision to the district court. The district court ultimately affirmed the agency's
determination, concluding that the term "known" means "more than alleged or even suspected."
Further, the court adopted SRS's interpretation, finding "'[the term history] must embody a
determination that from among conflicting pieces of information that either this version or that
version is more likely to be the truth.'"

2. Additional fact-finding by the district court was unnecessary

JCDS further suggests that the district court's interpretation of K.A.R. 30-63-28(f)
required that the court to consider evidence presented by JCDS at the hearing to determine
whether Alberta had a "known" history of child abuse. Absent such a fact-finding process, JCDS
argues the only basis for the agency's decision the court could consider was SRS's waiver
argument, which the district court rejected and which ruling SRS has not appealed.

We find flaw, however, with JCDS's assertion that the district court's interpretation of the
regulation required the court to make factual determinations regarding the significance of the
evidence presented at the hearing. The district court accepted the agency's interpretation that a
"conviction" of abuse, neglect, or exploitation of children or vulnerable adults was sufficient to
bar employment of a provider under K.A.R. 30-63-28(f). Further, the court agreed with the
agency that a "known" history of abuse, neglect, or exploitation of children or vulnerable adults
means more than mere allegations or suspicions; rather, it embodies "a determination" made after
both sides of an issue have been heard.

As discussed further below, JCDS failed to present any evidence that Alberta had a
conviction or known history as defined by the agency and the district court. Thus, given the
interpretation of the regulation, the district court did not err in failing to make additional factual
findings regarding the evidence presented by JCDS.

Accordingly, we reject JCDS's contention that the district court erred in failing to find that
SRS failed to resolve an issue requiring resolution.

C. The District Court Did Not Err in Affirming SRS's Interpretation of K.A.R.
30-63-28(f)

JCDS next argues the district court erred in affirming SRS's interpretation of K.A.R.
30-63-28(f).

Administrative regulations promulgated within an agency's statutory authority have the
force and effect of law. K.S.A. 77-425; Tonge v. Werholtz, 279 Kan. 481, 483-84,
109 P.3d 1140
(2005). We grant deference to an agency's interpretation of its own regulations and will not
disturb the agency's interpretation unless it is clearly erroneous or inconsistent with the regulation.
Tonge, 279 Kan. at 484. Nevertheless, because the interpretation of a regulation is a
question of
law, we are not bound by the district court's judgment. See Murphy v. Nelson, 260
Kan. 589, 594,
921 P.2d 1225 (1996).

K.A.R. 30-63-28(f) states:

"A provider shall not employ any individual who is known by a provider to have
had a
conviction for or a prior employment history of abuse, neglect, or exploitation of children or
vulnerable adults."

JCDS does not not dispute that this regulation was promulgated within SRS's statutory
authority to protect vulnerable persons within the State of Kansas. See K.S.A. 39-1810 ("The
secretary may adopt rules and regulations to carry out the provisions of this [Developmental
Disabilities Reform Act (DDRA), K.S.A. 39-1801 et seq.]."). Pertinent to the
regulation in
question, K.S.A. 39-1804 notes that a primary policy of the DDRA is to provide persons with
developmental disabilities "protection from abuse, neglect and exploitation." Clearly, K.A.R.
30-63-28(f) promotes this policy and, therefore, lies within SRS's regulation-making authority.

The district court affirmed SRS's interpretation of the term "known" in K.A.R.
30-63-28(f) to "'mean more than merely alleged or even suspected'" and to "'embody a
determination
that from among conflicting pieces of information that either this version or that version is more
likely to be the truth.'" In doing so, the court pointed out that JCDS argued that the word
"known" should mean "'to have knowledge; to be or become cognizant.'" The district court
correctly concluded that "in essence," JCDS sought substitution of its interpretation for that of the
agency's. However, giving deference to the agency's interpretation, as it was required to do, the
district court found the agency's interpretation to be rational and appropriate.

JCDS's argument on appeal is again unclear. Primarily, JCDS reiterates its assertion that
the word "known" is an "intrasitive [form of the] verb 'know' which is defined as 'to have
knowledge; to be or become cognizant.'" Yet JCDS fails to explain the significance of its
proposed definition. Nor does JCDS suggest that its definition would alter or modify SRS's
interpretation of the regulation, which was adopted by the district court. In fact, JCDS even
concedes in its appeal brief that SRS's interpretation of the regulation is "not necessarily
inconsistent" with the regulation's terminology.

Essentially, it appears JCDS disagrees with the concept that the term "known" embodies a
"determination" made after consideration of conflicting evidence. Instead, JCDS implies that the
term simply requires consideration of information of which the provider is aware, which would
include reports of suspected and alleged abuse, neglect, or exploitation.

However, the distinction between suspicions or allegations of
abuse, neglect, or
exploitation and a known history of such actions is apparent when subsection (f) is
viewed in the
context of K.A.R. 30-63-28 in its entirety. For instance, subsection (a) requires that a provider
conduct an investigation when any abuse, neglect, or exploitation is suspected and
immediately
take appropriate action to ensure that persons involved are protected during that investigation.
Subsection (c) requires that a provider educate its personnel on how to contact the appropriate
state agency when abuse, neglect, or exploitation is suspected or witnessed.
Subsection (d) details
the manner in which providers are to report any incident of suspected abuse, neglect,
or
exploitation and dictates that the report is to be made "immediately." Finally,
subsection (e)
requires provider agents to cooperate fully with any state agency conducting an investigation
resulting from a report of abuse, neglect, or exploitation.

The various subsections of K.A.R. 30-63-28 clearly differentiate between "suspected" or
alleged conduct, which triggers a provider's obligations to report an investigate an individual and
a "known" history of such conduct, which bars a provider from employing the individual. Simply
said, if suspected or reported abuse, neglect, or exploitation was sufficient to permit a provider to
deny affiliate status or other employment, the agency could have utilized that same term in section
(f).

Thus, we conclude the term "known" in K.A.R. 30-63-28(f), which prohibits employment
of an individual known to have had a conviction for or a prior employment history of abuse,
neglect, or exploitation of a child, means more than merely alleged or even suspected. Rather, it
contemplates abuse, neglect, or exploitation that has been substantiated or confirmed after all
parties have had an opportunity to present evidence and a determination has been made from
conflicting evidence.

Finally, we note that JCDS does not directly challenge the application of K.A.R.
30-63-28(f) in its discussion of this issue, presumably because it contends in the previous issue
that the
agency failed to apply the regulation to the facts developed here. Nevertheless, it impliedly
challenges the application of the regulation when it suggests that even if the regulation requires a
determination made after consideration of conflicting evidence, the regulation was satisfied here.
JCDS points to testimony given at the evidentiary hearing before the ALJ in December 2006 and
suggests that because this was a "quasi-judicial" proceeding, the ALJ's decision embodied a
determination made after presentation of conflicting evidence.

Presumably, JCDS is referring to Jennifer Bustamonte's testimony at the administrative
hearing regarding abuses she claimed to have witnessed during the 1-year period she was with the
Brumleys in 1984-85. Regarding this testimony, JCDS asks the rhetorical question, "If JCDS
could not challenge Mrs. Brumley's eligibility to become its affiliate at the December 2006
hearing, when, then, could it do so?"

As Alberta aptly points out in her appeal brief, any allegations of abuse JCDS relied upon
as "known history" at the appeal hearing should have been "known" by the time JCDS initially
denied Alberta's application on the basis of the regulation. This interpretation is consistent with
several sections of K.A.R. 30-63-28, which as we have noted, require that providers
"immediately" respond and investigate suspected or reported abuse.

Thus, we agree that a known history of abuse, neglect, or exploitation under K.A.R.
30-63-28(f) does not encompass testimony made at the administrative hearing regarding
previously
unsubstantiated or unconfirmed claims. Specifically, in this instance, "known history" did not
include testimony or information presented at the administrative hearing regarding abuse allegedly
occurring during a 1-year period in the 1980's.

Giving deference to SRS's interpretation of its own regulation, as we must, we conclude
the district court did not err in finding SRS's definition to be consistent with the regulation and
not clearly erroneous.

D. The District Court Did Not Err in Finding SRS Did Not Employ an Unlawful
Procedure In Overruling JCDS's Denial of Affiliation Status

JCDS next contends the district court erred in failing to find that SRS did not comply with
procedural requirements in overruling JCDS's denial of Alberta's affiliation application.

JCDS's argument again appears to be two-pronged. First, it contends the agency erred in
failing to conduct a hearing prior to rendering its initial decision overruling JCDS's denial of
Alberta's application. Second, it suggests that if the December 2006 administrative hearing
constituted JCDS's "fair hearing," then the ALJ erred in refusing to consider uncontroverted
testimony presented by JCDS at the hearing.

1. Initial agency decision did not require hearing.

JCDS recognizes that K.A.R. 30-64-32 requires JCDS and other Community
Development Disability Organizations (CDDO) to implement dispute resolution procedures and
establishes the procedure under which certain parties affected by the CDDO's decisions may
appeal. JCDS also concedes that Alberta and Jeremie followed the applicable procedures by
appealing the denial of Alberta's affiliation application to SRS. However, JCDS challenges SRS's
refusal to conduct a hearing before initially overruling JCDS's affiliation determination.

A plain reading of the applicable regulations undermines JCDS's argument. K.A.R.
30-64-32 provides that any procedures implemented by JCDS, or similar CDDOs, will create a
right of
appeal by any party to either the governing body of the CDDO, if the dispute involves the CDDO,
or the Commission (defined by K.A.R. 30-63-1(3) as the division of mental health and
developmental disabilities of SRS), if the dispute does not involve the CDDO or if the appeal to
the governing body of the CDDO has not resolved the dispute.

Here, when JCDS denied Alberta's application for affiliation, DRC, on behalf of Jeremie,
appealed the decision to the governing body of JCDS, the Johnson County Council of Community
Members. When the Council declined to hear the appeal, reasoning it lacked authority to interpret
an SRS regulation, Jeremie appealed to Zillinger as the "commissioner." Zillinger reviewed
JCDS's basis for the affiliation determination and resolved the dispute by ordering JCDS to
affiliate with Alberta Brumley. JCDS appealed this decision.

Therefore, contrary to JCDS's appeal argument, the appropriate regulatory procedure was
followed in this case. Moreover, K.A.R. 30-64-32 does not require a fair hearing until after the
Commission has decided the dispute:

"The authority to review the dispute and make an appropriate decision shall be reserved by
the
commission to assist the parties in resolving the dispute and preventing similar disputes in the
future, including by requiring changes of policies, procedures, or practices of community service
participants; by requiring corrective action or a peer review process by community service
participants; or by using other resolution guidelines. The decision of the division may be
appealed to the office of administrative appeals with the Kansas department of administration
pursuant to article 7." (Emphasis added.) K.A.R. 30-64-32(c)(3)(B).

Thus, K.A.R. 30-64-32(c)(3)(B) specifically provides for a fair hearing following the
Commission's decision pursuant to Article 7, which includes regulations regarding fair hearing
appeals. See K.A.R. 30-7-64 et seq. However, that regulation does not require a
hearing before
the Commission renders its ruling. See In re Tax Application of Lietz Constr. Co.,
273 Kan. 890,
911, 47 P.3d 1275 (2002) (applying the canon of statutory construction, expressio unius est
exclusio alterius, i.e., a court may presume the inclusion of one thing implies
the exclusion of
another). Consequently, JCDS has failed to demonstrate that SRS implemented an unlawful
procedure in rendering its initial decision regarding Alberta's affiliation status.

2. The ALJ did not err in refusing to consider testimony at hearing.

Alternatively, JCDS contends if the administrative hearing in December 2006 constituted
JCDS's fair hearing, then the ALJ erred in refusing to consider uncontroverted testimony
presented by JCDS at that hearing regarding its assertion that Alberta had a known history of
abuse.

Specifically, JCDS points to the testimony of Jennifer Bustamonte, who related specific
acts of abuse committed by Alberta. JCDS argues that because Bustamonte was subject to
cross-examination at a fair hearing, the ALJ should have made a credibility determination to
confirm or
dispel the allegations of abuse presented by Bustamonte.

However, applying SRS's interpretation of K.A.R. 30-63-28(f), the ALJ reasoned that the
information produced by JCDS at the hearing involved only accusations, reports, and allegations
of abuse, neglect, and exploitation committed by Alberta during her time as a foster parent. Like
the documentary evidence presented at the hearing, Bustamonte's testimony did not constitute a
known history of abuse, neglect, or exploitation. Further, the ALJ concluded that the
administrative hearing was not the proper forum to adjudicate the allegations of abuse.

The district court affirmed this rationale, finding that the administrative proceeding was
not an appropriate forum in which to adjudicate allegations of abuse. Rather, the hearing was
designed to determine whether the agency properly overruled JCDS's denial of Alberta's affiliation
application. The denial of the application, under the justification provided by JCDS, was proper
only if Alberta had a known history of abuse, neglect, or exploitation at the time JCDS made its
determination.

We agree with this analysis. As a practical matter, the use of the administrative proceeding
in this case to adjudicate abuse allegations was inappropriate for two reasons. First, the narrow
purpose of the administrative hearing was to determine the reasonableness of the agency's
decision to overrule JCDS's denial of the application--a denial which was based upon evidence of
Alberta's alleged "known history" at the time of the decision. Thus, even if the ALJ had made a
credibility determination regarding evidence of abuse presented at the hearing, that determination
could not have assisted JCDS at the time it denied Alberta affiliation status based upon its
interpretation of the regulation. Second, it is fundamentally unfair to adjudicate abuse allegations
made more than 20 years earlier involving abuse occurring as much as 30 years earlier,
particularly when these allegations were investigated but never substantiated when made.

Under the circumstances of this case and in light of the limited purpose of the
administrative hearing, we conclude the ALJ did not err in refusing to consider testimony
regarding allegations of abuse which were not substantiated at the time JCDS denied Alberta's
application

E. The District Court Did Not Err in Finding SRS's Decision Was Supported by
Substantial Evidence

In a related argument, JCDS next contends that in determining whether Alberta had a
known history of abuse, neglect, or exploitation, the ALJ erred in disregarding uncontroverted
facts presented by JCDS and considering only the significance (or lack thereof) of Alberta's
expunged misdemeanor conviction. Thus, JCDS argues the agency's decision was not supported
by substantial evidence.

As discussed, to determine whether SRS's decision is supported by substantial evidence,
we must determine whether the agency's factual findings are "supported to the appropriate
standard of proof by evidence that is substantial when viewed in light of the record as a whole."
See L. 2009, ch. 109, sec. 28(c)(7) (amending K.S.A. 77-621[c][7]). "In light of the record as a
whole" means we must judge the evidence supporting a particular finding of fact "in light of all the
relevant evidence in the record cited by any party that detracts from such finding as well as all of
the relevant evidence in the record . . . cited by any party that supports such finding." See L.
2009, ch. 109, sec. 28(d) (amending K.S.A. 77-621[d]).

JCDS argues the ALJ disregarded undisputed evidence of abuse presented at the
administrative hearing. However, as discussed, the ALJ did not simply "disregard" such evidence
without reason. Rather, the ALJ correctly ruled as a matter of law that SRS's interpretation of
K.A.R. 30-63-28(f) did not permit consideration of unconfirmed or unsubstantiated instances of
abuse, neglect, or exploitation.

"[I]f Winston's argument were adopted, SRS would be required to ignore any evidence
discovered
during the investigation that related to prior unsubstantiated or even unreported allegations of
abuse. This would be an illogical result. Section 2324 of the PPM [Children and Family Services
Policy and Procedure Manual] does not prohibit SRS from using things discovered during
investigation of a specific incident. Winston had access to SRS investigative files. Sarah Byall
testified in her deposition that Winston was validated because he satisfied all the above quoted
bases for validating a perpetrator under Section 2324 of the PPM. There is no indication that any
of the evidence presented at the hearing was a surprise. Thus, there is nothing that would
preclude this information from being used to substantiate and validate a perpetrator
where the
alleged perpetrator had notice of the information." (Emphasis added.) Winston, 274
Kan. at 415.

Thus, the purpose of the administrative hearing in Winston was to determine
whether the
evidence supported SRS's determination that Winston had committed specific acts of abuse. In
contrast, the purpose of the administrative proceeding here was to determine whether SRS
erroneously concluded that Alberta Brumley did not have a "known" history of abuse at the time
JCDS denied her affiliation application.

Finally, although the parties have not supplemented their briefs or discussed application of
the KJRA's recently revised standard of review, we do not believe that standard significantly
impacts our decision today. The KJRA now requires that we consider all relevant
evidence that
detracts from the agency's finding as well as relevant evidence supporting an agency's
finding. As
discussed, the unsubstantiated and unconfirmed documentary information and testimony presented
by JCDS at the December 2006 administrative hearing was not "relevant" to a determination of
whether Alberta Brumley had a "known" history of abuse under the agency's definition of K.A.R.
30-63-28(f). Thus, it need not be considered in determining whether the agency's decision was
supported by substantial evidence.

The district court did not err in refusing to consider evidence of 20- to 30-year-old
unsubstantiated and unconfirmed allegations of abuse against Alberta Brumley in determining
whether the agency's decision was supported by substantial evidence.

F. The District Court Did Not Err in Finding SRS's Decision Was Not Otherwise
Arbitrary or Capricious

Finally, in another related argument, JCDS contends SRS's decision was arbitrary and
capricious because SRS ordered JCDS to affiliate with Alberta despite Alberta's known history of
abuse, neglect, or exploitation. In support of this contention, JCDS adopts and incorporates by
reference the argument and authorities supporting its assertion that the decision was not based
upon substantial evidence. In light of our preceding determinations, this argument lacks merit.

The judgment of the district court affirming SRS's decision overruling JCDS's denial of
Alberta Brumley's application for affiliate status is affirmed.